FMLA Study to be Conducted by Department of Labor

Next year, the Department of Labor plans to conduct a survey on how employees are using the Family and Medical Leave Act.  The survey will be completed by the department’s Wage and Hour Division and is intended to “provide insight into how families” use FMLA leave.

Since 1993, when FMLA legislation was signed into law, the Department of Labor has completed several surveys. The most recent survey, released in 2007, estimated that up to 17 percent of employees took FMLA leave in 2005.

The FMLA gives employees the right to take up to 12 weeks of job-protected unpaid leave a year because of certain family situations, such as the birth or adoption of a child, to take care of a sick child, or to care for their own medical problems.

Sears Settles EEOC Age Discrimination Suit

CORPUS CHRISTI, Texas – A Corpus Christi Sears store will pay more than $30,000 and furnish other relief to settle an age discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC’s lawsuit, filed in U.S. District Court for the Southern District of Texas, Corpus Christi Division (Civil Action No. 2:09-cv-00253), alleged that Sears #1217, located at 1305 Airline Road, refused to hire a then 61-year-old applicant into an entry-level loss prevention/asset protection position despite his qualifications and 27 years of investigative experience. Such alleged conduct violates the Age Discrimination in Employment Act (ADEA). The EEOC filed suit after first attempting to reach a voluntary settlement.

Under the terms of the consent decree settling the suit, signed by U.S. District Judge Janis Graham Jack on July 14, 2010, Sears will take the following actions with respect to Store #1217: (1) require all members of management with supervisory authority  to review and agree in writing to comply with Sears’ equal employment opportunity/ADEA policy; (2) provide training on the requirements of the ADEA to all members of Sears’ management with supervisory authority and/or the authority to hire, promote, terminate and/or demote employees ; (3) post a notice confirming Sears’ intent not to discriminate against any employee and/or applicant for employment in violation of ADEA; and (4) pay $30,750 to the applicant it refused to hire.

Major Washington Apple Grower Sued for Sexual Harassment

YAKIMA, Wash. – One of the largest apple producers in the United States has been placed under a temporary restraining order (TRO) filed by the U.S. Equal Employment Opportunity Commission (EEOC). The federal agency was motivated by the immediate danger of “substantial and irreparable injury” to class members and potential witnesses in the EEOC’s sexual harassment suit against Cowiche, Wash.-based Evans Fruit Company, which was filed at the same time as the agency’s TRO request.

U.S. District Court Judge Lonny R. Suko has ordered the company and all its agents to stop all retaliatory activity against those involved and those who may become involved in the lawsuit. Under the terms of the TRO, Evans Fruit supervisors – including Juan Marin, Alberto “Camello” Sanchez, and Simon Ramirez – must avoid further contact with class members and potential witnesses and must immediately cease any attempts to intimidate or tamper with current or potential witnesses, such as paying to influence testimony.

The EEOC filed suit on behalf of three individuals and a class of women, alleging sexual harassment by the ranch manager and crew leaders at the grower’s Sunnyside ranch. According to the agency’s investigation, these supervisors often singled out women for sexual advances, with work assignments that isolated them from friends and family members. The women were forced to quit, the EEOC charged, in order to get away from the ongoing sexual comments, propositioning and physical groping.

One of the workers who filed charges with the EEOC described how the ranch manager refused to let her work on the same crew as her 15-year-old daughter, whom he then targeted with unwelcome verbal and physical sexual attention.

After first attempting to reach a settlement out of court through conciliation, the EEOC filed the lawsuit (Case No. 10CV-03033 LRS) and applied for the temporary restraining order in U.S. District Court for the Eastern District of Washington. The agency seeks monetary damages on behalf of the women, training on anti-discrimination laws, posting of anti-discrimination notices at the work site and other injunctive relief.

Cullman Company To Pay $100,000 To Settle EEOC Race Discrimination Lawsuit

BIRMINGHAM,  Ala. – McGriff Industries, Inc. and its subsidiary McGriff Transportation, Inc., which operate a truck transportation facility in Cullman, Ala., will pay  $100,000 and furnish other relief to settle a racial harassment and retaliation  lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

According to the EEOC, certain employees and managers in the Cullman facility routinely used racially derogatory comments, slurs, and insults directed at or about African-Americans. The racial misconduct escalated to threats and intimidation, including a derogatory threat to cut one of the black employees. White and black employees were offended by the racial misconduct, but were rebuffed and retaliated against – one employee was terminated and another had his work assignments changed – when they complained.

The EEOC filed suit in U.S. District Court for the Northern District of Alabama Northeastern Division (Civil Action 5:09-CV-01952-IPJ) after first attempting to reach a pre-litigation settlement. The settlement, by consent decree, provides for a total payment of $100,000 to Todd A. Roseborough, Sr., Paul Hogan and Aaron Greenwood.

The decree also includes injunctive terms applicable to each of McGriff’s offices, facilities and retail establishments in the state of Alabama. Among other requirements, McGriff must develop and implement effective anti-discrimination policies and procedures, and train its employees, supervisors and managers on the prohibitions against racial misconduct in the workplace. The company will develop a system for reporting, investigating and addressing complaints of workplace racial misconduct; hold all employees accountable for engaging in it; and hold supervisors and managers accountable for tolerating or failing to address such misconduct.

PETCO to Pay $145,000 for Failing to Accommodate Deaf Pet Groomer

DENVER – Pet store giant PETCO Animal Supplies Stores, Inc. will pay $145,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC had charged the company with failing to accommodate a deaf pet groomer formerly employed at one of its stores in Aurora, Colo.

According to the EEOC, San Diego-based PETCO hired Nancy Buchner – who has over 30 years’ pet grooming experience – as a pet stylist in 2001. Profoundly deaf since birth, Buchner communicates most effectively in sign language. Upon hire, PETCO’s management assured Buchner that other employees would assist in scheduling her appointments via telephone as a reasonable accommodation.

However, the EEOC asserted that a PETCO manager eventually refused to schedule customers for Buchner, despite specific requests by customers for Buchner’s services, and PETCO employees inaccurately informed customers that Buchner no longer worked for the company as a means to funnel them to non-disabled pet groomers.  The EEOC further claimed that PETCO proceeded to unfairly penalize her during annual performance reviews for ineffective communication skills due to her inability to speak. Buchner eventually resigned in 2006.

The EEOC filed suit against PETCO in April 2009 in U.S. District Court for the District of Colorado (Equal Employment Opportunity Commission v. PETCO Animal Supplies Stores, Inc., Case No. 09-CV-00747 WYD-CBS), asserting that PETCO failed to reasonably accommodate Buchner and subjected her to disparate treatment due to her disability, in violation of the Americans With Disabilities Act of 1990 (ADA).

Aside from the monetary relief, the decree requires PETCO to implement an internal policy, procedures and staff training to safeguard against disability discrimination. PETCO must also submit annual reports to the EEOC to track future complaints of disability bias and requests for disability-related accommodations.

Aiken Fairfield Inn Operator Sued by EEOC for Unlawful Retaliation against Employees

AIKEN, S.C. – The company that operates a Fairfield Inn & Suites hotel in Aiken, S.C., violated federal law by firing two employees, one as retaliation for complaining about discrimination and the other because it mistakenly believed she was doing so, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit.

According to the EEOC’s suit, NAS of Aiken, LLC employed Sharon Green as executive director of housekeeping and Connie Hankinson as a housekeeper. In April 2007, Green complained about treatment towards African-American employees that she believed to be discriminatory, and Green was thereafter suspended and then discharged on April 18, 2007.

The EEOC further claims that the company fired Connie Hankinson because it mistakenly believed she was trying to obtain information that would support Green’s retaliation claims against the company; Hankinson was coming to work to deliver a doctor’s note to support her own absence from work, but managers had been falsely informed that she was coming to gather evidence to support Green and management thus discharged her.

The EEOC filed suit in U.S. District Court for the District of South Carolina, Aiken Division (EEOC v. NAS of Aiken, LLC d/b/a Fairfield Inn & Suites, Civil Action No. 1:10-cv-01665-MBS -PJG) after first attempting to reach a voluntary settlement out of court through its conciliation process.

The lawsuit seeks monetary relief for Green and Hankinson and an injunction enjoining NAS of Aiken from engaging in further retaliation against employees based on their opposition to unlawful employment practices or employment practices which the employee reasonably believes to be unlawful under the federal statutes enforced by the EEOC.

EEOC Lawsuit Challenges Sexual Harassment and Retaliation at North Dakota Applebee’s

BISMARCK, N.D. – The Applebee’s Neighborhood Grill & Bar – Bismarck South, owned and operated by Apple Core, Inc. and Food Management Investors, Inc. (FMI), allegedly violated federal civil rights laws by permitting a former store general manager to create a pattern and practice of sexual harassment and retaliation against employees according to a lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).

The EEOC’s complaint specifically alleges that between 2002 and the end of 2007, the general manager of Bismarck South Applebee’s routinely groped female employees, solicited sexual relations, told sexually explicit stories and jokes and made highly personalized sexual comments designed to demean and humiliate female employees. The EEOC’s investigation indicated that on at least one occasion, the harasser coerced an employee into giving him oral sex in exchange for a raise. Additionally, the EEOC’s complaint alleges that the manager systematically retaliated against female employees who rebuffed his sexual advances, and retaliated against both female and male employees who complained about his behavior.

The EEOC’s suit was docketed before Judge Daniel L. Hovland in the Southwestern Division of the U.S. District Court for the District of North Dakota (Equal Employment Opportunity Commission v. Apple Core, Inc. and Food Management Investors, Inc. d/b/a Applebee’s Neighborhood Grill & Bar; Civil Action No. 1:10-cv-00048 DLH/CSM) after first attempting to reach a voluntary settlement out of court through its conciliation process.

In this case, the EEOC is seeking injunctive relief that will require Apple Core/FMI to adopt an effective sexual harassment prevention policy that complies with federal law and will seek back pay, compensatory and punitive damages on behalf of the charging parties and a class of approximately 20 former employees of the Applebee’s Neighborhood Grill & Bar – Bismarck South.

The EEOC’s lawsuit stems from charges of discrimination that were filed by five former employees of the Applebee’s Neighborhood Grill & Bar – Bismarck South, located at 434 South 3rd Street in Bismarck.

Sioux Falls Oral Surgery Clinic Pays $118,775 to Settle EEOC Pregnancy Discrimination Case

PHOENIX – Siouxland Oral Maxillofacial Surgery Associates, LLP of Sioux Falls, S.D., has agreed to pay $95,000 in punitive damages and attorneys’ fees, in addition to $23,775 paid earlier this year for lost earnings and interest, to resolve a pregnancy discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of two pregnant women discriminated against in 2002. Siouxland is a medical clinic in Sioux Falls that specializes in oral and maxillofacial surgery.

The EEOC’s suit charged that Richelle Dooley was fired days after Siouxland learned of her pregnancy, and that a few months later, Siouxland refused to hire Angie Gacke after learning in an employment interview that Gacke was pregnant.

The EEOC filed suit after first attempting to reach a voluntary settlement out of court through its conciliation process. In 2007 a jury found that Siouxland had intentionally discriminated against Dooley and Gacke because of their pregnancies and awarded $21,098 in lost earnings. EEOC appealed because the trial judge had refused to give the jury an instruction on punitive damages. Under the Civil Rights Act of 1991, punitive damages are available where it is proven that the employer engaged in discrimination with malice or reckless indifference to the civil rights of the claimant.

On August 27, 2009, the Eighth Circuit Court of Appeals issued a decision upholding the jury verdict for the claimants, and additionally holding that the jury should have been instructed on punitive damages. [See EEOC et al v. Siouxland Oral Maxillofacial Surgery Associates, L.L.P., 578 F.3d 921 (8th Cir. 2009).] As a result of the Eighth Circuit Court of Appeals decision, the case was returned to Sioux Falls for a second trial on punitive damages. After the appeal was decided, Siouxland paid the two women $23,775 for the back pay amounts previously awarded, plus interest. As a result of the parties’ agreement to resolve the remaining punitive damages and attorneys’ fees claims for $95,000, the case is now completely resolved.

The settlement agreement filed in U.S. District Court for Southern District of South Dakota (EEOC, et. al. v. Siouxland Maxillofacial Surgery Assoc., LLP CIV. 044215) also includes Siouxland’s agreement to provide training for Siouxland employees and supervisors on sex and pregnancy discrimination as well as reporting by Siouxland to the EEOC on other complaints of sex discrimination, including pregnancy bias.

Court Issues Key Decision in EEOC’S Lawsuit Against Hibbing Taconite Company

MINNEAPOLIS – Judge Richard Kyle of the U.S. District Court for the District of Minnesota issued an order denying in part the motion of Hibbing Taconite Company for summary judgment in a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).

In its lawsuit, EEOC v. Hibbing Taconite Company, Civ. No. 09-729 (RHK/RLE), the EEOC charged that Hibbing Taconite Company discriminated against James Edstrom, who is deaf, when it denied him employment at its mine. The EEOC contends that Hibbing Taconite rejected Edstrom, who formerly worked for LTV Mining, because of his hearing impairment, in violation of the Americans with Disabilities Act (ADA).

On March 5, Hibbing Taconite filed a motion for summary judgment alleging that it was entitled to an immediate judgment in its favor and without trial because, it contended, there were no disputed issues of fact, and that Edstrom was not qualified for the positions for which he applied, which included three in the plant and two in the open pit mine, because of his deafness.

Although the court granted summary judgment as to the jobs in the plant, it found that there was ample evidence on which a jury could find that Edstrom could have performed the jobs in the open pit mine with a reasonable accommodation, noting that Edstrom had already successfully worked at the LTV mine pit.

The court also concluded that a jury could find that Hibbing Taconite had acted in bad faith when it initially reversed its decision to interview Edstrom right after it learned that he was deaf.   The case has been set for trial in Duluth, Minn., on July 26, 2010.

Texas Transportation Brokerage Companies Pays $50,000 for Retaliation

HOUSTON – Amino Transport, Inc. and Chariot Express, Inc. will pay $50,000 and provide additional remedial relief to settle a discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC had charged that Joshua Male’s employer unlawfully retaliated against him by firing him because he had complained about workplace comments being made by two coworkers at the Sugar Land, Texas facility where they worked.

The EEOC’s lawsuit (Civil Action No. 4:09-cv-03142, in U.S. District Court for the Southern District of Texas, Houston Division) asserted that in July 2008, Male complained to the human resources manager about persistent inappropriate jokes about Mormons, as well as workplace comments allegedly disparaging a pregnant female co-worker, women in general, and an African American. The HR manager reported Male's complaints to the general manager of the facility, and Male was fired within less than 72 hours.

Under the terms of the four-year consent decree settling the suit, signed by U.S. District Judge Nancy F. Atlas, the companies will pay $50,000 in relief to compensate Male and the companies’ salaried employees will receive periodic training on laws prohibiting employment discrimination.